FOURTH SECTION
DECISION
Application no. 55257/22
Nermin ŠABANIJA MUHIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 10 February 2025 as a Committee composed of:
Lorraine Schembri Orland, President,
Faris Vehabović,
Sebastian Răduleţu, judges,
and Giorgi Badashvili, Acting Deputy Section Registrar,
Having regard to:
the application (no. 55257/22) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 January 2023 by a citizen of Bosnia and Herzegovina, Mr Nermin Šabanija Muhić (“the applicant”), who was born in 1973 and was represented by Vaša Prava, a local non-governmental organisation;
the decision to give notice of the application to the Government of Bosnia and Herzegovina (“the Government”), represented by their acting Agent, Mr B. Bajić;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the lawfulness of the applicant’s detention in a social care home.
2. The applicant suffers from paranoid schizophrenia. He was deprived of his legal capacity in 2008. He has been detained in the Drin social care home (“Drin”) since 1 February 2016 without a decision of the competent court.
3. On 17 January 2018 the Constitutional Court did not admit for examination the applicant’s constitutional appeal on the ground that he had not used the form required under Rule 21 of the Rules of the Constitutional Court, despite having been given specific instructions and additional time to do so.
THE COURT’S ASSESSMENT
4. The applicant complained under several Articles of the Convention of the unlawfulness of his detention in Drin since 1 February 2016.
5. The general principles concerning the rule of exhaustion of domestic remedies were summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). As to legal systems which provide constitutional protection for fundamental rights, such as that of Bosnia and Herzegovina, the Court reiterates that it is incumbent on the aggrieved individual to test the extent of that protection (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006).
6. In the present case, it is not disputed that the applicant failed to lodge a duly completed appeal form with the Constitutional Court. The Court has already held that an appeal to the Constitutional Court is, in principle, an effective domestic remedy for the purposes of Article 35 § 1 of the Convention (ibid.). The applicant did not exhaust that remedy, having failed to comply with the relevant formal requirements, nor has he shown that the remedy itself was for any reason inadequate or ineffective in this particular case. Indeed, the Government submitted copies of numerous decisions of the Constitutional Court in which that court had ruled in favour of appellants who were in an almost identical situation to that of the present applicant. Moreover, they demonstrated that virtually all those decisions had been implemented by the national authorities (contrast Hadžimejlić and Others v. Bosnia and Herzegovina, nos. 3427/13 and 2 others, § 46, 3 November 2015).
7. The Court need not examine whether the Constitutional Court ought to have dispensed with the formal requirement under Rule 21 of its Rules (see paragraph 2 above) in view of the applicant’s mental health, since the applicant did not advance that argument in his application, which, moreover, was lodged with the Court almost five years after the Constitutional Court’s impugned decision of 17 January 2018 and is therefore, in any event, clearly out of time under Article 35 § 1 of the Convention. By way of contrast, the Court observes that the applicant, acting alone, without legal representation, nevertheless succeeded in lodging his application with the Court in full compliance with the formal requirements of Rule 47 of the Rules of Court. In this connection, the Court reiterates that a complaint intended to be raised before it must first be made before the appropriate domestic authority in compliance with the formal requirements laid down by domestic law (see, amongst many others, Vučković and Others, cited above, § 72).
8. Furthermore, Vaša Prava, a local non-governmental organisation with the necessary expertise in the field of psychiatric detention, subsequently agreed to represent the applicant. Since the applicant appears to remain detained in Drin without a decision by the competent court, and the situation complained of is therefore continuous, it remains open to him, now assisted by a qualified legal representative, to lodge a duly completed constitutional appeal and then, if necessary, to bring a fresh application with the Court. Accordingly, the Court sees no special circumstances exempting the applicant from the obligation to use the remedy of a constitutional appeal (see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996‑IV).
9. It follows that the application is inadmissible for non-exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 March 2026.
Giorgi Badashvili Lorraine Schembri Orland
Acting Deputy Registrar President